[2004] KEHC 1501 (KLR)
The court found that the trial in the lower court was prosecuted by a police constable who was not an authorized prosecutor under Section 85 of the Criminal Procedure Code, rendering the proceedings a nullity. Since the appellants had already served part of their sentences and had been released under Presidential...
Source-derived case information.
- Citation
- [2004] KEHC 1501 (KLR)
- Parties
- Appellant: Karuku Dume; Appellant: Ramadhani Njana Tsuma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 311&310; of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Unauthorized Prosecution, Nullity of Trial, Presidential Amnesty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Karuku Dume
Appellant
Ramadhani Njana Tsuma
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether prosecution by an unauthorized police constable renders the trial a nullity under Section 85 of the Criminal Procedure Code.
- 2 Whether a retrial should be ordered where the appellants have already served part of their sentence and have been released under Presidential Amnesty.
Ratio Decidendi
The court found that the trial in the lower court was prosecuted by a police constable who was not an authorized prosecutor under Section 85 of the Criminal Procedure Code, rendering the proceedings a nullity. Since the appellants had already served part of their sentences and had been released under Presidential Amnesty, the court determined that ordering a retrial would be unjust. The court also recognized that it could not override the Presidential Order granting amnesty. Accordingly, the appeal was allowed and no retrial was ordered.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- No retrial is ordered.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT OMBASA
crim app 311&310; of 03
KARUKU DUME………………………………...……… APPELLANT
V E R S U S
REPUBLIC…………………………………………………RESPONDENT
CONSOLIDATED WITH CRIMINAL APPEAL NO.310 OF 2003
RAMADHANI NJANA TSUMA…………………………..APPELLANT
V E R S U S
REPUBLIC………………………………………………..RESPONDENT
JUDGMENT
I wish to argue only ground No.(1) in the Petition. The matters were prosecuted by Police Constable - Pc. Mukonesi and contrary to Section 85 Criminal Procedure Code. The proceedings are a nullity. I ask the court to allow appeal. The Appellants have already served 5 months of jail term and they have been released on Presidential Amnesty. Ms Mwaniki I concede appeal. The Prosecutor was unauthorized. Sentenced to 12 months imprisonment. Offence of serious nature. The Appellant has served only 5 months. COURT
The Appellants are already released under Presidential Amnesty. This court cannot override the Presidential Order on exercise of his mercy. Again, the trial in the lower court was prosecuted by a Police Constable who was not an authorized prosecutor under Section 85 Criminal Procedure Code which makes the trial a nullity. It can not be said that the Appellants have not suffered punishment. They were arrested on 27/1/03 and in Cr.A.310/03 was released on 23/12/03 and in Cr. A.311/03 on 22/12/03. In the circumstances no retrial can be ordered as it would be unjust to the Appellant. The appeal is therefore allowed.
Dated at Mombasa this 9th day of February, 2004.
JOYCE KHAMINWA
J U D G E